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November 19, 2013

Latest USSC publication highlights remarkable "disparities"(?) in federal FIP sentences

I am pleased to see that the US Sentencing Commission now has up on its website another terrific new data document in its series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

As I have said before, I think this series is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these publications.  This latest document, which "presents data on offenses under 18 U.S.C. § 922(g), commonly called 'felon in possession' cases," includes these notable data details:

In fiscal year 2012, 5,768 offenders were convicted of violating 18 U.S.C. § 922(g)....

One-quarter (25.2%) of offenders convicted under section 922(g) were assigned to the highest criminal history category (Category VI). The proportion of these offenders in other Criminal History Categories was as follows: 11.7% of these offenders were in Category I; 9.3% were in Category II; 21.1% were in Category III; 18.9% were in Category IV; and 13.8% were in Category V.

10.3% were sentenced under the Armed Career Criminal Act (ACCA) (18 U.S.C.§ 924(e))...

The average sentence length for all section 922(g) offenders was 75 months; however, one-quarter of these offenders had an average sentence of 24 months or less while one-quarter had an average sentence of 96 months or more.

The average sentence length for offenders convicted of violating only section 922(g) and who were sentenced under ACCA was 180 months.

The average sentence length for offenders convicted of violating only section 922(g) but who were not sentenced under ACCA was 46 months.

The title of this post has the term "disparities" in quotes followed by a question mark because these basic sentencing data about a pretty basic federal crime could be interpreted in many disparate ways. Given that all the offenders sentenced for FIP likely were engaged in pretty similar conduct (simple possession of a firearm) and all of them, by definition, had to have a serious criminal record in order to be subject to federal prosecution, one might see lots of unwarranted disparity among this offender group given the extraordinary outcome variations documented here -- in FY2012, over 10% of FIP offenders are getting sent away for an average of 15 years, but another 25% are going away for only 8 years, while another 25% are going away for only 2 years.

Then again, given the apparently varied criminal histories of the FIP offenders, the sentencing variation here surely reflects various (reasoned and reasonable?) judicial assessments of different levels of recidivism risk for different FIP offenders.  I certainly hope that the those being sentenced to decades behind bars for gun possession are generally those with very long rap sheets, and that those getting sent away only for a couple years are those with much more limited criminal histories.

Finally, in addition to noting the profound significance that past crimes clearly have on current sentencing in FIP cases, I must note that it is these past crimes that itself serves to convert the behavior here in to a federal crime.  Indeed, if one takes the Second Amendment very seriously (as I do), the actual "offense behavior" in these cases might often be subject to significant protection as the exercise of a fundamental constitutional right unless and until the person has a disqualifying criminal past.  Proof yet again that the past, at least when it comes to criminal sentencing and constitutional rights, is often ever-present.

November 19, 2013 at 02:40 PM | Permalink


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The USSG drives much of differing numbers in FIP cases. Base offense level(BOL) for FIP is 14. But if you have one prior felony conviction for a crime of violence or controlled substance offence, which does not include simple possession, the BOL is 20, and if you have two qualifying priors the BOL is 24. Common enhancements are stolen firearm, +2, obliterated serial number, +2, and possession of the firearm in connection with another felony offense, +4.

Many USAOs have a Project Safe Neighborhood Committee where the Feds and locals decide which office takes a certain FIP case. Number of qualifying convictions is one factor as well as age, gang ties, etc . . . .

Posted by: AUSA12 | Nov 19, 2013 7:56:06 PM

Doug: If one commits a state felony with a firearm in Tennessee, you are going to be sentenced in state court and then be prosecuted and sentenced in federal court for FIP. (Just look at the number of officially
"unreported cases" in the Sixth Circuit coming from Tennessee on a weekly basis). That doesn't happen very often, if ever, in Kentucky, Ohio and Michigan. As a practitioner, I believe the USSC statistics are a function of prosecutorial discretion and slavish adherence to the "advisory" guidelines in FIP cases by District Judges.

Posted by: ? | Nov 19, 2013 10:45:50 PM

Professor, I am not sur you are right on a point abov, FYI. A serious criminal record, by definition, or otherwise, is not required to be subject to federal prosecution. A person can have had a conviction overturned through a habeas as action, or could have just been under felony indictment and was subsequently acquitted. See US v. Lewis, 445 us 55 (1980).

"But to limit the scope of 922 (g) (1) and (h) (1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a disability not only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony charge. Since the fact of mere indictment is a disabling circumstance, a fortiori the much more significant fact of conviction must deprive the person of a right to a firearm." Id.

Posted by: = | Nov 21, 2013 3:38:57 AM

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